U.S. Court Seems Split on Utah Gay Marriage Ban

Plaintiffs on Utah’s Ban on Gay MarriageTwo of the plaintiffs in a case challenging Utah’s ban on gay marriage, Moudi Sbeity and Derek Kitchen, discussed why they were pursuing the lawsuit.Photo: Jim Auley, The New York Times

DENVER — The push for same-sex marriage, which has celebrated victory after victory in courtrooms across the country, entered an uncertain stage on Thursday as a federal appeals court appeared divided about whether the socially conservative state of Utah could limit marriage to a man and a woman.

In an hour of arguments inside a packed courtroom, three judges from the Federal Court of Appeals for the 10th Circuit sparred with lawyers about how such bans affected the children of same-sex parents and whether preventing gay couples from marrying actually did anything to promote or strengthen heterosexual unions and families.

Judge Paul J. Kelly, who was nominated by the elder President Bush, appeared more deferential to Utah’s voters and its legislature while Judge Carlos F. Lucero, a Clinton appointee, asked pointed questions about whether Utah was stigmatizing children of gay couples. Legal observers said the deciding vote appeared to belong to Judge Jerome A. Holmes, who was nominated by President George W. Bush, and lofted tough questions at both sides.

“Why does it matter who’s claiming the right?” Judge Holmes asked a lawyer representing Utah. “It’s a fundamental right, and why does it matter the participants in that enterprise? Why does it matter?”

Thursday’s arguments signaled the first time an appeals court had considered the issue since the Supreme Court handed two major victories to gay-rights supporters last summer, striking down a law that denied federal benefits to same-sex couples and clearing the way for same-sex marriages across California.

It was a day freighted with emotion for gay-rights supporters and same-sex couples in Utah. Dozens flew to Denver from Utah to attend the arguments, lining up early Thursday morning for a seat in the courtroom. A conservative state lawmaker was one of a handful of supporters of the ban to attend the hearing. “Our lives are on the line here,” said Derek Kitchen, the plaintiff who lent his last name to the case — Kitchen v. Herbert. Gary R. Herbert is Utah’s Republican governor.

As Mr. Kitchen and the other plaintiffs chatted and exchanged reassuring pats on the shoulder in the courtroom, they were approached by Utah’s attorney general, Sean Reyes, whose office has taken the lead role in defending the same-sex marriage ban. Shaking hands and greeting the plaintiffs, Mr. Reyes crouched down and told them: “I’m sorry that we’re causing you pain. Sometime after the case is over, I hope we can sit down.”

After the hearing, Mr. Reyes said he had told the plaintiffs that the legal confrontation was not personal, and that he knew that the plaintiffs’ families were as important to them as his own was to him. But he said it was unclear what would happen to the unions and benefits of Utah’s newly married same-sex couples if the state prevailed in its appeals. Utah has previously raised the possibility that those marriages could be dissolved.

Separately, in Indiana on Thursday, a federal judge ruled that the state must, for now, recognize the same-sex marriage of a woman who is terminally ill. Nikole Quasney and Amy Sandler have two children and joined one of five lawsuits challenging the state’s ban on same-sex marriage last month, citing the need to have their relationship legally recognized in order to access benefits for surviving family members. Ms. Quasney received a diagnosis of ovarian cancer in 2009; the couple married in Massachusetts last year.